Here’s how the DMCA has worked so far: A copyright holder (henceforth “publisher”) notices an instance (henceforth “video”) of what it thinks is a violation of its copyright on a site such as YouTube (henceforth “YouTube”). The publisher sends YouTube a notice that the video infringes copyright. YouTube then has a choice: It can disagree that the video infringes, and leave it up, or it can take it down and let the video’s poster know that it’s done so. If YouTube chooses Door Number One, it becomes liable if a court decides the video really was infringing. So, inevitably, YouTube takes it down. The video’s poster can then counter-notify YouTube that the video is not infringing. (In this one example, YouTube’s lawyers will actually take a look to decide whether they think it infringes or not. But YouTube is very special in this regard.)

On paper, this seems reasonable. And maybe if the whole thing were done with paper, it would be. But the claims of infringement can be compiled digitally — publishers like Viacom automatically generate lists of every instance of, say, “jon stewart” in a video’s title and submit lists of over a hundred thousand URLs, obviously without having actually reviewed any of the videos — while the response is analog, and thus hard, time-consuming, and risky.

Now there’s been some good news.
A federal judge has ruled that before a publisher submits a DMCA takedown notice to a site like YouTube, some human being has to look at it to decide if it actually infringes, or if it is protected by Fair Use. If this ruling is maintained, it will help re-balance the insanely pro-publisher, pro-protection, pro-restriction copyright regime by taking away the incentive to take down anything and everything that looks like it might maybe perhaps upset a publisher’s delicate sensibilities.